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Senator Folmer: Asset foreiture law forfeits civil rights

Flint McColgan, YorkDailyRecord
Published 7:34 p.m. ET Aug. 25, 2015

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David P. Adcock, of Hellam Township, begins the auction from the back of a pickup truck during the York County District Attorney s Drug Task Force Auction Monday May 25, 2015 in York. About 50 vehicles were auctioned off with other items. Most were seized during drug investigations.(Photo: Paul Kuehnel &#45; Daily Record&#47;Sunday News)

One of the bill's sponsors, state Sen. Mike Folmer, a Lebanon County Republican who represents a portion of York County, said the current law and practices go too far and actually violate the constitutional rights of Pennsylvania residents, when he spoke with the York Daily Record/Sunday News Editorial Board on Monday.

The bill

The Senate and House bills reform the current forfeiture laws in four distinct ways, as summarized by Rep. Jim Cox, a Republican serving portions of Berks and Lancaster counties in his supporting memorandum for the House version:

• Require the criminal conviction of the property owner prior to asset forfeiture. Assets can still be seized and stored at arrest but forfeited only after conviction.

• Redirecting funds to the general fund of the governing body of the jurisdiction where the forfeiture occurred

• "Providing protections for innocent third parties."

• "Closing the loophole that allows local authorities to continue asset forfeiture by coordinating with the government."

Civil rights

The libertarian activist network and public policy law firm Institute for Justice gives a D grade to Pennsylvania's civil asset forfeiture laws.

Other organizations in the corner for reform include the American Civil Liberties Union, the state chapter of Americans for Prosperity, Keystone Progress and the Commonwealth Foundation. On the national scene, the list grows even longer.

"It's one of those issues where it doesn't toe a traditional liberal or conservative line," said Andy Hoover, the legislative director of the ACLU of Pennsylvania.

"If you ask the average person, across the board they would say that of course a person should be convicted of a crime before they forfeit their property," he added.

The bills other sponsor is Sen. Anthony Williams, D-Philadelphia, who is the minority chair to Folmer's majority chair on the senate State Government Committee.

The co-sponsors to sign on to the bill include members from both parties, which Hoover said improves the likelihood of the bill moving out of committee.

Gutting the system

While Folmer declared that civil asset forfeiture is being misused as a "revenue generator" for law enforcement agencies, representatives of those agencies say there are checks and balances to the system.

York County District Attorney Tom Kearney called the bill "an appalling piece of legislation" in an email he sent to the county's complement of legislators on Dec. 19 urging them not to support the bill.

"Simply put, we would have to close up shop, which I see as the goal of the legislation," Kearney wrote. "The result would be that the drug effort would fall back upon municipal police departments."

Kearney's analysis is supported by the District Attorney's Association of Pennsylvania. Executive Director Richard Long said the current law "provides a mechanism to keep these assets out of the hands of criminals."

R. Dane Merryman, the executive director of the Pennsylvania Chiefs of Police Association, opposes the legislation in part.

While he said the group supports the provision of the bill that requires a conviction prior to forfeiture, it does not support changing the direction of the funds to the state's general fund "and believe the funds should stay in the county it was found in because that is the county that was impacted."

"That's ridiculous," Hoover said, adding that the complaint is based on a misreading of the legislation.

The bill does clearly define that the money would not all go to the state's fund but to the fund of the forfeiting jurisdiction.

Once in the general fund for the county, the district attorney's office could just request that money for its budget to fund a task force during the annual county budgeting process, Hoover said.

Checks and balances

Kearney said that the cases regularly cited by forfeiture reform of abuses of the system are rarely well researched by those using them as an argument.

A case out of Philadelphia, where prosecutors seized the home of a couple whose adult son was accused of selling drugs, is cited too often, he said, and nobody ever mentions that it was eventually resolved in court.

He said there are three layers of legal protections in place to avoid overzealous forfeiture.

First, he explained, a police officer must determine whether an asset is involved in either the sale or production of drugs before seizing the item. Then lawyers in the DA's office must come to the same determination and then, finally, a judge will make the ultimate ruling.

"I categorically disagree with this bill," he said. "I think the senator is way off base ... His propensity to eliminate drug laws is well known."

What is civil asset forfeiture?

A memorandum supporting the reform bill describes civil asset forfeiture as a tool law enforcement has used to "cripple drug cartels by seizing their ill-gotten gains and infrastructure used to support their illicit activities."

The process involves the seizure of assets that an officer has determined to the level of "a preponderance of the evidence" — a burden of proof less than the "beyond a reasonable doubt" needed in criminal trials — that the asset has been used in the commission of a crime.

In these cases the asset or property itself is effectively put on trial and the case names reflect that, like the case of "Commonwealth of Pennsylvania v. All That Certain Lot Or Parcel Of Land Located At 605 University Drive, State College, Centre County, Pennsylvania And Described With Particularity At Deed Book 1419 Page 0976 In The Office Of The Recorder Of Deeds, Tax Parcel Number 36-014-123A."

Because it is a civil, and not a criminal, charge to an item and not a person, there is no right to counsel for the owner to legally attempt to recover the forfeited property, according to supporting memorandum.

Most commonly in York County, the forfeiture is used for felony-level intent to deliver or delivery of controlled substances crimes, according to York County District Attorney Tom Kearney. Only rarely are assets forfeited for misdemeanor crimes, he added, usually due to aggravating factors.